Carolyn E. Wright is an attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn's Web site, www.photoattorney.com. These and other legal tips for photographers are available in Carolyn's book, The Photographer's Legal Guide, available on her Web site. NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney who is licensed to practice in your jurisdiction.

Black Star Rising received the following question from a reader, Darren Gibbins of Fargo, N.D. —

Can you tell me what legal rights I have to publish images I’ve made throughout my photojournalistic career on my website? Some have suggested that the images belong to the various newspapers I’ve worked for. I’ve also been told websites are considered editorial content and I am free to use my images on a site to promote my photography with or without a newspaper’s consent. Please help.

Darren, that’s a good question. When photographers work for newspapers (or other employers), they sometimes wonder who owns the copyrights to the photos — the photographer or the newspaper? Generally, if you are employed full-time for a newspaper and it is in your job description to shoot for the newspaper, the newspaper likely owns the copyright.

Work for Hire

The Copyright Act defines it as a “work for hire” — “a work prepared by an employee within the scope of his or her employment.” See #10117 USC 101. If you are not an employee of the newspaper, then you own the copyright unless you have a written agreement with the newspaper that specifies that all the copyrights to the photos belong to the newspaper/hiring company.

Sometimes, however, there is a dispute as to whether you are an “employee” of a company. The case that is most cited to determine whether you are an employee is CCNV v. Reid. There, the court explained:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The Copyright Office has prepared a circular to assist in understanding the application of this law.

If you are a full-time employee and do some part-time shooting for the company and/or shoot on company time, it is a judgment call as to whether the photography is within the scope of your employment. But if you get a statement/agreement in writing from your employer to confirm that it isn’t, it will be helpful later if there is any dispute.

Determining Fair Use

If the newspaper or employer owns the copyrights under the “work for hire” law, it is as if you never shot the photos. You then may use the photos without permission only if the uses fall under “fair use.”

While editorial use is one of the factors considered by a court to determine whether a use is fair, it is not the only factor. It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair.